Judicial-Cultural Reflections on the Series of Lawsuits over Trademarks Relating to Tangping Bazhen (Eight Ways of Diagnosis of Traditional Chinese Muslim Medicine), Traditional Medicine of China’s Ethnic Hui People

September 28,2016 By:chinahumanrights.org

Hu Shien (photo: Zhao Yifan)

Judicial-Cultural Reflections on the Series of Lawsuits over Trademarks Relating to Tangping Bazhen (Eight Ways of Diagnosis of Traditional Chinese Muslim Medicine), Traditional Medicine of China’s Ethnic
Hui People

Hu Shien

Associate Professsor of Ningxia University

Abstract: As the product of knowledge commercialization, intellectual property lawprohibits the unauthorized use of innovations, making the external consumption characters of innovations exclusive and internalizing the external revenues to ensure the proceeds are owned bythe innovators. This legal design for the monopolization of gains is instrumental in promoting the creation and circulation of technological innovations. Accordingly, an appropriate and effective legal regimeis required to fully protect the splendid intangible cultural heritages of minority ethnic groups. The most appropriate and effective protection of intangible cultural heritage of ethnic minorities at present is to confirm rights and distribute benefits through the legal system for intellectual property rights. “Tangping Bazhen (literally, Eight Ways of Diagnosis of Traditoinal Chinese Muslim Medicine)” therapy is the representative of the traditional medicine of the Muslim Hui ethnic group of China and a treasure of Hui’s intangible cultural heritage. However, the word mark of “Tangping Bazhen” has encountered difficulties in the trademark tort lawsuits and the administrative proceedingsinvolving trademark disputes. The trademark tort lawsuitsover “Tangping Bazhen” mainly involve affirmation of intangible cultural heritage and the adoption of trademark generic name. One of such lawsuits has lasted three years and gone through the competent intermediate people’s court to the Supreme People’s Court, the highest judicial body of China. The issue of generic name was not mentioned in the verdict of the intermediate people’s court; while the verdict of the Supreme People’s Court confirmed the trademark involved as a generic name because it is approved as intangible heritage. The overlap between intangible heritage and the public domain does not mean that an intangible heritage, once being affirmed as intangible heritage, will necessarily go into the public domain and become a generic name. Regretfully, the Trademark Review and Adjudication Board under the State Administration for Industry and Commerce of China ruled and declared that the disputed trademark of “Tangping Bazhen” was invalid. The administrative proceedingsinvolving disputes over the trademark mainly centered on the distinctiveness of such a trademark, and the courtconcerned ruled that the disputed trademark didn’t have any distinctiveness because “Tangping Bazhen” had the generic inheritance as an intangible heritage rather than the application in the trademark law. To solve the paradox in the trademark protection of intangible cultural heritages, we should respect and recognize intangible heritages of ethnic minorities through broadening the intellectual property protection, enhancing the intellectual property legal and technical means, and innovating on the intellectual property legal system of the country.